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Defending public parks: the case of Banstead Downs Common

To make themselves richer, a few bloated putocrats seek to deprive the public of ‘public goods’. Sir John Craddock is a prime example:A leaflet issued by Banstead Commons Conservators relates that in 1873 Sir John Cradock Hartopp Bt from Yorkshire bought 1700 acres of Banstead Commons. He planned to purchase the commoners’ rights and enclose and develop the most suitable parts. Turf, top soil, gravel, etc were to be removed and sold from Banstead Heath, and houses built. To stop this, local residents formed Banstead Commons Protection Committee in 1887. Legal action followed, culminating in Sir John’s bankruptcy. In 1893, Parliament passed the Metropolitan Commons (Banstead) Supplemental Act, protecting the downs from further development.’
I invite the landscape architects defending Taksim Gezi Meydani to celebrate Sir John’s downfall and bankruptcy. As Gloria Steinem said ‘Power can be taken, but not given. The process of the taking is empowerment in itself.
Image courtesy garda

I think Gloria Steinem is less than 100% right but that she has a good point which is well illustrated by the decline of the feudal system. In the time of William the Conqueror a Lord of a Manor surely had the absolute legal right to build whatever he wanted on the manor. His serfs were given specified rights in common land. They held these rights under something like our law of contract but I do not think they could not pass them on to their children. By 1800 most of the Lord’s feudal rights and duties had gone, in England, but they had never been ‘bought out’ as samurai rights were in Japan. So the ownership of ‘common land’ in the 1850s was a moor point until the law was clarified. BUT it is pretty clear that the lords of the manors of England did not give up their powers voluntarily: the powers were taken from them. A recent example is their loss of a hereditary right to sit in the House of Lords. They protested at the loss but the power was taken from them.

Ah, constitutions! This is no problem in the UK – because we have never had one. As to whether this is a ‘good thing’ or a ‘bad thing’ (the 1066 And All That approach to history) nobody knows. Constitutions tend to be excellent when they are written, and for a long time after, but they become difficult to change, as with America’s ‘Gun Law’. Wiki has an interesting article on the history of constitutions. Just imagine what a difficulty there would be if the founding fathers had slipped in something about the superiority of fathers’ rights over mothers’ rights.

I used to mention Forest Law in lectures but do not think my listeners took much notice. This is a pity. Common rights were a very important aspect of land management and I would like to see their revival
Pasture. Right to pasture cattle, horses, sheep or other animals
Piscary. Right to fish.
Turbary. Right to take turf for fuel.
Common of marl. Right to take sand and gravel.
Mast or pannage. Right to turn out pigs for a in autumn to eat mast
Estovers. Right to take sufficient wood for the commoner’s house

I think you are right to see an equivalence between the common rights of the English people and the rights of indigenous Australians.
Also, I think modern peoples need modern parallels to common rights. To lawyers they are ‘easements’. To economists they are ‘public goods’ and ‘common goods’. To the public – they are very important!

Easements are rights of access given for specific purposes, ie to provide access to a property located to the rear of another without direct street access. An easement usually burdens one property title and benefits another property title. [ http://en.wikipedia.org/wiki/Easement ]

Public goods or common goods are a different concept again. They are are part of the distinction between public law and private law.

Someone has helpfully decribed the distinction this way:

“Public Law vs. Private Law

Public laws are those laws that are relevant to matters affecting the entire community (e.g. laws about criminal activity or the environment).Public law involves interrelations between the state and the general population.It is that area of the politics governing the relationship between individuals (citizens, companies) and the state. Constitutional law, administrative law and criminal law are thus all sub-divisions of public law.
Private laws are laws that are most relevant to individuals (e.g. laws dealing with property ownership or employment contracts). Private law involves interations between private citizens.
Common Law vs. Statute Law”

The Wiki article on easements begins ‘An easement is a certain right to use the real property of another without possessing it. It is “best typified in the right of way which one landowner, A, may enjoy over the land of another, B.” My use of the term easement in this context comes from WH Whyte, in one of the first books I read on landscape planning The last landscape. I have not re-read it since then but it sticks in my mind as the wisest book I have read on the subject – so I should re-read it. Whyte was a former editor of Fortune Magazine and the author of a brilliant book on The social life of small urban spaces. I am not familiar with the distinction between public and private law and will aim to become so. I agree that the public and common goods are not the same thing as easements but they share the characteristic of ‘crossing’ property boundaries with (eg) rights of way.